- A Wisconsin inpatient residential health facility violated federal law when it rescinded a job offer because the job applicant tested positive for a prescribed medication, the U.S. Equal Employment Opportunity Commission (EEOC) has charged in a lawsuit.
- Rogers Behavioral Health (Rogers) offered the applicant a job as an intake specialist. At her pre-employment physical, which included a drug screen, the applicant disclosed that she had a prescription for Alprazolam, the generic form of Xanax, a medication commonly prescribed for anxiety, the EEOC says. The doctor who performed the physical indicated on the physical examination form that she had reviewed the applicant's drug screen and found her medically acceptable for work as an intake specialist.
- The EEOC says Rogers pulled the offer because it regarded the applicant as disabled due to her drug screen, in violation of the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964, which prohibit discrimination on the basis of actual or perceived disability. Rogers also failed to contact the applicant or give her the opportunity to provide additional information to contest the drug screen, says the EEOC, and withdrew the job offer via email without explaining that the decision was related to the drug screen.
The ADA prohibits discrimination by covered employers against a qualified individual with a disability in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. An individual with a disability is a person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such an impairment; or is regarded as having such an impairment, according to the EEOC.
The "regarded as" prong of the ADA's definition of disability protects an individual from discrimination based on an employer's belief that he or she has a disability. The bar for proving "regarded as" claims was lowered under the ADA Amendments Act of 2008. Establishing a successful "regarded as" claim is now based on "how a person has been treated because of a physical or mental impairment (that is not transitory and minor), rather than on what an employer may have believed about the nature of the person's impairment," according to the EEOC.
While workplaces are generally free to prohibit illegal drug use at work (with medical marijuana an evolving area of the law), federal law requires employers to try to accommodate qualified individuals with disabilities who are properly using prescription medications. A business may conclude that an accommodation poses a direct threat to safety or an undue hardship on the business, but this is a difficult legal standard to meet.
The National Law Review
A divided panel of the U.S. Court of Appeals for the Seventh Circuit recently held that an employer could rescind a work-from-home arrangement and require an employee to be physically present without running afoul of the Americans with Disabilities Act (ADA). The court explained that due to changes in responsibilities for the position, the employer was within its rights to determine that an employee’s physical presence had become an essential job function. Thus, under the ADA, a Chicago resident employee whose disability prevented her from being present at the employer’s site in Texas was not a “qualified individual” for the particular role.
In Bilinsky v. American Airlines, Inc., the Seventh Circuit affirmed the district court’s summary judgment ruling in favor of the defendant employer. The plaintiff, a former communications specialist, had been diagnosed with multiple sclerosis (MS). The employee’s department was located in the Dallas, but for several years, she had been permitted to work remotely from Chicago, usually traveling to Texas on a weekly basis.
In 2013, after a merger with another airline increased the department’s workload, the department vice president required all department employees to be physically present in Dallas. However, the plaintiff’s MS symptoms were aggravated by excessive heat, and she was thus unable to relocate to Texas. The defendant employer unsuccessfully explored accommodating the plaintiff’s heat sensitivity on-site, and tried to find alternate positions for the plaintiff, but the plaintiff was either not interested in or not qualified for the alternate positions. The defendant permitted the plaintiff to continue working remotely until early 2015, at which time it informed her that she would be terminated if she did not relocate to Texas. The plaintiff was terminated May 1, 2015.
After filing a Charge of Discrimination and receiving a Right to Sue letter from the Equal Employment Opportunity Commission, the plaintiff brought her ADA suit, alleging failure to accommodate and retaliation under the ADA and the Illinois Human Rights Act.
The U.S. District Court for the Northern District of Illinois granted summary judgment for the employer, finding that due to her inability to relocate to Texas to work full-time at the employer’s Dallas offices, the plaintiff was not a “qualified individual.” On appeal, the Seventh Circuit affirmed.
Although the plaintiff was qualified to do her job before the 2013 merger while working remotely, under the circumstances, the court agreed with the district court’s determination that after the merger, physical presence eventually became an essential function of the plaintiff’s job. Because the plaintiff could not be physically present in Texas, the court determined that she was not a “qualified individual” for the role under the ADA.
Despite the favorable outcome in this case, employers would be well served to heed the dissent’s emphasis on a written job description, which set forth requirements and qualifications for the role (e.g. location). This was particularly emphasized in the context of the summary judgment. The majority also reiterated that “regular work-site attendance is an essential function of most jobs,” but was careful to point out that permitting employees to telecommute is no longer as extraordinary an accommodation as it once was. Regarding accommodations, the court noted that “[l]itigants (and courts) in ADA cases would do well to assess what’s reasonable under the statute under current technological capabilities, not what was possible years ago.”
In the current job market, with unemployment rates at a low of 3.6%, many companies are struggling to find not just employees, but loyal and long term ones. The need for reliable employees has brought to light the fact that adults with disabilities are not only an untapped resource but an important one.
July 26 marks the anniversary of the Americans With Disabilities Act (ADA) that aids in bringing those with disabilities off of the economic fringe. Signed into law on July 26, 1990 by President George H.W. Bush, the act specifically prohibits discrimination against people with disabilities in employment, transportation, public accommodations, commercial facilities, telecommunications, and state and local government services. From a work-force perspective, the ADA does not demand preferential treatment for those with disabilities, but equal protection and reasonable accommodations to develop an even, professional playing field.
Mental illness is sometimes referred to as an invisible illness, but its effect on the workplace is far from hidden.
Business Management Daily
Dealing with an employee who is struggling with alcoholism or addiction is one of HR’s most difficult issues. It's important to remember what you legally can, and cannot do when faced with this complex situation.
How the ADA treats alcoholism and addiction
Don’t make a delicate task even harder by running afoul of the ADA. Factors to consider:
Accommodation does not mean you can’t discipline someone who drinks or uses drugs on the job or comes to work impaired. You don’t have to accept substandard work or conduct. For the most part, accommodation will be to allow time for treatment or otherwise support the goals of treatment—for example, allowing a worker to decline assignments or obligations in places where alcohol is served.
You can’t discriminate against workers or applicants who have been, or are being, treated for alcoholism or drug addiction. However, the ADA specifically does not cover the use of illegal drugs; you are allowed to test workers for drug use, and discipline or terminate, or refuse to hire those who use drugs.
The ADA protects workers who don’t have disabilities but who are perceived as being disabled. Employers have lost ADA cases for being too quick to label employees as “alcoholics” or “drug users”—even with the best intentions.
Opioid crisis affects three out of four employers
Seventy-five percent of U.S. employers have been directly affected by opioids but only 17% feel extremely well prepared to deal with the issue, according to a survey released in March by the National Safety Council.
“The opioid crisis is truly encompassing nearly every aspect of American lives,” said Nick Smith, president and CEO of NSC. He said the survey “confirms that the No. 1 cause of preventable death is not just taking its toll on our home lives, but companies across the country are also grappling with the impact of this epidemic.”
For the first time in U.S. history, a person is more likely to die from an accidental opioid overdose than from a motor vehicle crash, according to NSC calculations. In fact, workplace overdose deaths involving drugs or alcohol have increased by at least 25% for five consecutive years, according to the Bureau of Labor Statistics.
Among the survey findings:
- Just half of the employers are very confident that their HR policies and resources are adequate to deal with opioid use and misuse in the workplace.
- Only 60% of employers have policies requiring employees to notify their employer when they are using a prescription opioid.
- 79% are not very confident that employees can spot warning signs of opioid misuse.
- 41% of employers would return an employee to work after he or she received treatment for misusing prescription opioids.
Online resource To request a free National Safety Council guide to help employers manage opioid misuse at work, visit safety.nsc.org/rxemployerkit.
Beware presumptions about alcoholism
Alcoholism may be an FMLA-covered serious health condition. If an employee returns to work after taking FMLA leave to rehab from a drinking problem, warn supervisors to check their presumptions about alcoholism.
Doing or saying the wrong thing could violate the FMLA, the ADA or both.
Recent case: Leslie had worked as a nurse for Warren County since 1992, always earning good reviews. She had never been disciplined for any workplace violations. Part of her job involved driving a county-issued car to conduct home health care visits.
In late 2011, Leslie took a short FMLA leave to seek treatment for depression and alcoholism. She took a second leave in mid-2012 for further treatment.
Before returning to work, she was required to provide a medical certification showing she could perform the core functions of her job, which she obtained from her health care provider. Apparently not satisfied with the certification, her supervisor demanded a second exam. She got that, too.
Once she was back at work, she claimed her supervisor began micromanaging her, creating additional paperwork and subjecting her to new reporting requirements. She said another supervisor began making hostile comments about needing to get home and drink “three martinis” or have a “double Stoli.”
Soon, Leslie’s supervisor required her to take an involuntary medical leave, based on tremors and anxiety she was allegedly suffering from. The supervisor sent Leslie a letter telling her that during the involuntary leave, she hoped Leslie would obtain the appropriate care for her medical problems.
Instead, Leslie quit, claiming her supervisor had harassed her based on her disability and forced her out.
The court said she had a case, particularly since Leslie explained she couldn’t risk waiting to be fired and potentially losing her nursing license. (McNulty v. County of Warren, ND NY, 2019)